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COMMONWEALTH v. FERNANDES.

Nos. 97-P-766 & 97-P-1698.

46 Mass. App. Ct. 455 (1999)

COMMONWEALTH v. DELFINO M. FERNANDES (and a companion case).

Court of Appeals of Massachusetts, Plymouth.

March 15, 1999.

Attorney(s) appearing for the Case

Robert P. Kidd for Janette Johnson.

Mary E. Mullaney, Assistant District Attorney, for the Commonwealth.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth, submitted a brief.

Robert O. Berger, for Delfino Fernandes, submitted a brief.

Present: ARMSTRONG, SMITH, BROWN, PERRETTA, & KASS, JJ.

KASS, J.

Delfino M. Fernandes was convicted under a twocount indictment, the first of which, count A, charged him with unlawful distribution of a controlled substance, cocaine (G. L. c. 94C, § 32A[c]). Count B charged a subsequent violation (G. L. c. 94C, § 32A[d]). Although Fernandes has not raised the question, we consider first the sufficiency of the repeat offense indictment because if the indictment is legally deficient, the court is without...

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